Police Should Need Warrant To Search Cellphones

If police are going to search a cellphone for evidence, why not require a search warrant?

The General Assembly should change the standard that police must meet before gaining access to citizens' cellphone records.

The present law says that before obtaining information about cellphone use, police must have "a reasonable and articulable suspicion" that a crime has been or is being committed. The standard should be "probable cause" that a crime will occur or is occurring.

That may seem like just a different way of expressing the same standard. But it isn't.

To have "probable cause," a police officer needs some concrete evidence of a crime; it is needed to obtain a search warrant. "Reasonable suspicion" is a looser standard. It's more than a hunch, but does not require as much evidence as probable cause.

In Connecticut, police tracking of cellphone use is not a trivial matter. Since the "reasonable suspicion" law passed in 2005, police departments have obtained at least 13,500 court orders to get cellphone records. These orders are rarely, if ever, denied.

They allow officers not only to track phone calls, but to look at text and email messages sent by phone and to use the device's geolocation capabilities to find where someone has been.

It amounts to a search — an electronic one. Yet because the standard is only "reasonable suspicion," no search warrant need be applied for. That would seem at odds with the Constitution's Fourth Amendment.

The bill would have also required law enforcement to notify people that their phone use is being tracked, and to keep any findings for only two weeks unless there's an ongoing criminal investigation. The bill passed the House unanimously, but died on the Senate floor. It should be revived and passed in the special session.

Especially in the computer age, balancing the need for both security and privacy is difficult. This bill would have brought a complex issue into better balance.